Scottish High Court of Justiciary Decisons

NOTE OF APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDUR (SCOTLAND) ACT 1995 BY CRUMMOCK (SCOTLAND) LIMITED v. HER MAJESTY'S ADVOCATE [2000] ScotHC 33 (16th March, 2000)

[1] In November 1999 an indictment was served on the appellants, who are public works contractors, charging them with breaches of sections 3(1) and 33(1)(a) of the Health and Safety at Work Act 1974. It is averred in the indictment that the appellants were engaged that day on carriageway resurfacing on the A702 road in Midlothian. Diesel oil was stored in a bowser to be used by machinery and vehicles involved in this operation. In the middle of March 1997 diesel oil allegedly escaped from the bowser and entered the public water supply systems, with the result that the water supply to parts of Edinburgh and surrounding districts was contaminated and had to be suspended "all to the danger to the health and safety of the inhabitants of Edinburgh and surrounding districts".

[2] The appellants have pleaded not guilty to the indictment and at the first diet counsel addressed the sheriff in support of a Minute of Intention to raise a Devolution Issue in terms of Schedule 6 to the Scotland Act 1998 and a Notice of Intention to argue a plea in bar of trial in terms of sections 71(2) and 79 of the Criminal Procedure (Scotland) Act 1995. After hearing parties the sheriff refused the Minute and Notice but granted leave to appeal to this court.

[3] Article 6(1) of the European Convention on Human Rights confers on the appellants, as accused persons, the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The appellants contend that these proceedings contravene that right in two ways, namely that the indictment was not served within a reasonable time, and that the tribunal which is to be convened, consisting of a sheriff and a jury in the Sheriff Court at Edinburgh, cannot be said to be independent and impartial.

[4] There was no dispute in substance as to the chronology of the steps taken between the time of the incident and the service of the indictment. Nearly 23/4 years passed before these proceedings were brought. Initially investigations were carried out by the Scottish Environment Protective Agency (SEPA) in conjunction with East of Scotland Water. In June 1997 SEPA informed the appellants that they would not be referring the case to the procurator fiscal with a view to the bringing of criminal charges. However, there seems to have been a change of mind because in September 1997 a report was in fact made to the procurator fiscal. He asked for further investigations to be made and a second report was made in January 1998. Thereafter, work began on the preparation of precognitions. The appellants who had been dealing by this time with civil claims only became aware of possible criminal proceedings in August 1998 when the procurator fiscal sought to take precognitions from certain of their employees. In February 1999 the appellants wrote to the procurator fiscal enquiring as to his intentions and they were advised shortly afterwards that enquiries were still continuing. A report on the condition of the bowser was received by the procurator fiscal in March 1999. Further steps were taken and in September the papers eventually reached the Crown Office. Two months later the indictment was served.

[5] It is to be observed that, before the sheriff, Counsel for the appellants submitted that serious prejudice had been suffered as a result of a delay in bringing these proceedings. An important question was whether, if diesel oil did contaminate the water supply, it came from the appellants' bowser. Samples of the oil had been taken from the bowser and made available to the appellants. The appellants could not trace them and they believed that they had been destroyed after SEPA had indicated that the matter was not going to be reported to the procurator fiscal. However, Counsel informed us that a report had now been found relating to these samples and therefore that he was no longer in a position to argue that the delay in bringing these proceedings had caused prejudice to the appellants.

[6] In order to justify a plea of delay under Article 6(1) it is not necessary for an accused to show that prejudice has been, or is likely to be, caused as a result of delay. As the Lord Justice Clerk observed in McNab v. H.M. Advocate 2000 J.C. 80 at 84:

[7] Before the sheriff it was not disputed that the whole period since the date of the incident should be taken into account in assessing the length of the delay and we did not understand that position to be departed from in the submissions made to us. In approaching the question of what could constitute a "reasonable time" under Article 6(1) we agree with Lord Kingarth in H.M. Advocate v. Little 1999 S.C.C.R. 625 at page 635 where he said:

[8] Counsel for the appellants submitted that there was no explanation for the lengthy delay in bringing these proceedings. The procurator fiscal became actively involved at the latest in September 1997. The task of precognition began early in 1998 and continued throughout that year and into 1999. The rate of progress was leisurely in the extreme. On the other hand the Advocate depute maintained that this was a case of complexity requiring detailed scientific investigation in order to establish, or provide evidence that would establish, beyond reasonable doubt the cause of the spillage. Evidence was required to prove that this was due to omissions on the part of the appellants and evidence was required to prove the consequences of the escape of diesel oil into the water supply. This was a complex case involving prolonged and detailed investigation, as evidenced by the fact that 53 witnesses were to be cited, of whom eight were scientists.

[9] Whether the delay was reasonable must be a matter of impression derived from the ex parte submissions regarding the facts and circumstances which were made to us. It was not suggested that we should be provided with more details than we were given. As a result we have not found this a particularly easy task. The very length of time taken to bring these proceedings does appear to raise a question as to whether the prosecuting authorities have investigated this matter with expedition. On the other hand we feel bound to accept that this was necessarily a case where a careful investigation had to be made into matters of scientific complexity. In these circumstances, while there has undoubtedly been delay, it cannot be affirmed that the delay was so unreasonable as to contravene Article 6(1).

[10] We turn to the other submission by Counsel for the appellants which was that no jury to be balloted for service in the trial could be said to be independent and impartial in considering the evidence and in reaching their verdict. In terms of the indictment, the charge against the appellants is that as a result of certain omissions on their part the water supply was contaminated "all to the danger to the health and safety of the inhabitants of Edinburgh and surrounding districts". The case was to be heard at the Sheriff Court in Edinburgh and all members of the public who would be cited for service on this jury would come from Edinburgh and surrounding districts. We were informed that about 150,000 homes, not to speak of businesses, were affected at the time by interruptions to the water supply. Counsel submitted that all the members of the jury would in effect be complainers and therefore could not be perceived to be independent or impartial.

[11] The underlying approach in cases of this kind in the context of Human Rights law is well settled, although counsel was unable to draw our attention to any reported case covering the situation which we have to consider. The test as to "whether a tribunal is independent and impartial embraces the question whether it presents the appearance of independence from an objective standpoint" Starrs v. Ruxton; Ruxton v. Starrs 2000 JC 208 at 219 per the Lord Justice Clerk. Counsel submitted that the objective observer could not regard a jury in the circumstances of this case as independent or impartial, whatever safeguards might be put in place in the selection and management of the jury.

[12] It is to be emphasised that any examination of the independence and impartiality of a jury must proceed on rather different considerations from the scrutiny of these qualities in a judge. A jury of 15 members is selected by a ballot from a number of members of the public who are themselves selected at random. It does not follow, therefore, that they will necessarily have been affected or have any knowledge or even recollection of the event in question. Although a large number of households were said to have been affected in 1997, we were advised by the Advocate depute that only certain parts of the city and its outskirts, mainly on the eastern side, had had their water supply suspended on account of water contamination. It has further to be noted that the addresses of the jury are disclosed in the list of assize and it may very well be that none, or perhaps only a few jurors, will come from the affected areas. Moreover, in our view, it is fallacious to describe potential jurors as complainers thus equiparating them with victims. It is not averred in the indictment that the health or safety of anyone was actually affected. What happened was that the water supply was interrupted and that inconvenience to some, either as individuals or possibly as running a business, may well have resulted. In our opinion any relationship between a juror and the event is remote. Moreover, it is not at all clear why any inconvenience caused by the turning off of the water supply for a period of time in 1997 should cause a juror to nurse a grievance to an extent that that individual would fail to perform his duty according to the oath which he will have taken.

[13] That, in our view, should be sufficient to satisfy the most exacting impartial observer that the jury in this case will be perceived to be both independent and impartial. But even if these general considerations are deemed to be insufficient we consider that practical steps are open to safeguard not only the reality but also the appearance of independence and impartiality. The possibility of conflicting personal views and prejudices existing among jurors has always been recognised in our law and the means of eliminating or minimising such problems are well understood (McCadden v. H.M. Advocate 1985 J.C. 98, per the Lord Justice Clerk (Wheatley) at 102-3; Pullar v. H.M. Advocate 1993 J.C. 126) and recognised by the European Court itself (Pullar v. U.K. 1996 SCCR 755). We have already mentioned the fact that the jury will have been drawn from a broad base and that they will be required to swear an oath that they will well and truly try the accused and give a true verdict according to the evidence. Moreover, they will be directed by the sheriff to put to one side any feelings of prejudice or dislike arising from such memory as they may have of the incident. Furthermore, in accordance with the guidance given by Lord Justice General Hope in Pullar supra at page 134-5, potential jurors arriving at court should have been told by the sheriff clerk of the names of the accused and the nature of the charge and it will be open to the sheriff to ask jurors to inform him if they are aware of any reasons why they ought not to serve. In our opinion these safeguards are quite sufficient to ensure that an independent and impartial jury will be balloted to try the appellants.

[14] A minor point was raised by counsel for the appellants concerning the relevancy of part of the indictment. He referred to the allegation at the foot of page 1 of the indictment that diesel leaked from the bowser "on 14 and 16 March 1997" whereas at the top of page 2 it was alleged that on 14 March 1997 the diesel entered via a culvert into a valve chamber and eventually contaminated the water supply. Counsel submitted that any reference to events on 16 March 1997 was irrelevant and that the words "and 16 March 1997" should be deleted. In reply the Advocate depute argued that the latter date could be referring to a day when diesel oil spilled onto the ground around the bowser causing danger to health and safety. We see no reason at this stage for reaching a concluded view as to which argument is well founded since it is a matter which may arise for ultimate determination after the evidence has been led.

[15] In our opinion the sheriff reached the correct view and the appeal is refused.